August 2, 2013
Judge Boyle’s latest status
conference had its revealing moments
By JAMES LEA
exactly humming with excitement, the July 31 consent decree status
conference in the federal courthouse in Elizabeth City had its
revealing moments. Counting the judge, only 14 people had
gathered in the courtroom by the time Judge Terrence Boyle
entered. Of those 14, half were court officers or federal
The Southern Environmental Law Center (SELC)
and its clients, the Defenders of Wildlife and the North Carolina
Audubon Society, were represented by SELC’s Julie Youngman. As
usual, the Park Service, SELC’s presumed adversary, was represented by
Justice Department attorney Rudy Renfer. Seashore superintendent
Barclay Trimble and chief enforcement ranger Paul Stevens were
witnesses for both sides. Dare County Manager Bobby Outten, also
the county’s attorney, represented those most affected by the issue of
public access to the public beaches of the Cape Hatteras National
Seashore, but he had no official voice in the proceedings.
primary purpose of the conference, Boyle announced, was to review
progress under his 2008 consent decree and the National Park Service’s
2012 final rule for managing beach access in the Cape Hatteras National
Seashore. He added that he would consider future issues and “the
other lawsuit,” referring to the suit filed in 2012 by the Cape
Hatteras Access Protection Alliance (CHAPA) challenging the Park
Service’s process of developing its beach access management rule.
Renfer stood to point out that only six months of the second year of
rule implementation has passed, so a full annual report was not
possible. He commended SELC’s Youngman for preparing several
charts of species viability data covering the period 1992 to 2012 that
would be used in testimony by the NPS representatives.
was sworn as Renfer’s first witness, with greater procedural formality
than in the last status conference. As Trimble took the stand on
Jan. 23, Boyle had waived the oath and, leaning toward him like a
kindly old uncle, said, “You’ll tell us the truth, won’t you?”
began by acknowledging that in calendar year 2013 tropical storms have had a
negative effect on the reproductive success of piping plovers and
oystercatchers on seashore beaches. Only seven piping plover
chicks and 11 American oystercatchers have fledged this season.
However, he went on, there are 201 turtle nests on seashore beaches,
which is close to last year’s record 242 nests. Other species
data are not available, he said.
Renfer asked if there had been
a consistent pattern in the species’ rebounding success since the
consent decree was issued in 2008. Referring to Youngman’s
charts, Trimble cited increases since the consent decree and since the
2012 Rule. He cited a dramatic weather-related drop in the
numbers this year but did not draw attention to the fact that there
were no storms during the prior years’ more successful nesting and
Boyle asked Trimble if science predicts
continuing increases in species numbers on the seashore beaches or the
reaching of a plateau. Trimble replied that habitat capacity will
be reached at some point and the numbers will no longer increase
annually. He again pointed out that 2012 recorded the largest
number of turtle nests since data had been kept. Reading from
Youngman’s chart, Boyle noted 44 nests in 2004 and 242 nests in 2012
and asked if there was any variation in numbers among turtle
species. No, Trimble answered, there is consistency across
species, although loggerheads are the most numerous.
Youngman of the SELC had no questions, so Boyle asked Trimble about the
protected status of all birds and turtles on the seashore.
Youngman intervened to state that piping plovers are in the threatened
category in North Carolina, although they are considered endangered, a
higher level of risk, in other parts of the country.
Oystercatchers are classified only as a species of concern to the state.
Boyle asked, doesn’t the Park Service have a legal duty to protect all
species? The Park Service has duty with discretion, Youngman answered,
introducing a new term into the discussion. What’s discretionary
about the duty and what’s compulsory, Boyle wanted to know.
Trimble replied that the Park Service does everything possible to
protect all wildlife. Youngman added that the Park Service’s
discretion is limited by science and cited indicators that scientific
assessment of the loggerhead turtle’s rebounding success might lead to
its soon being removed from the endangered list.
asked how the Cape Hatteras National Seashore fits into the big picture
of the Atlantic coast habitat for turtles. Prior to the 2008
consent decree, Trimble said, 12 percent of all North Carolina turtle
nesting was on seashore beaches. Between 2008 and 2011, that
increased to 15.4 percent. In 2012, 20 percent of all
turtle nests on the North Carolina coast were on the seashore beaches.
past occasions, Judge Boyle has seemed to speak without fully
considering the larger import of his words. He did it again on
Wednesday when he asked Barclay Trimble if the 20 percent included the
beaches in the Pea Island Wildlife Refuge where no vehicles are
permitted on the beaches. Pea Island, said Trimble, was not
included. Boyle went on that Pea Island is right between Bodie
Island and Hatteras Island where access management regulations have
been in effect. It would be useful to compare Pea Island turtle
nesting data with those from Hatteras and Bodie islands, to use Pea
Island as a control to validate the night driving restrictions imposed
by the consent decree and the Park Service rule. Pea Island data
would be good evidence, said the judge, apparently assuming that it
would support the beach driving restrictions.
I haven’t seen
such data, Trimble said. He left the stand with no further
mention made of the drop in shorebird nesting and fledging success this
Rudy Renfer then called chief seashore ranger Paul
Stevens, who was formally sworn. In response to
Renfer’s question, Stevens said that since Jan. 1, more than 22,000
annual and weekly beach driving permits, most of them weekly, have been
sold. Those numbers should go into the file as evidence, Boyle
injected. Of the 30,000 permits sold in 2012, he asked, how many
were annuals? Stevens said he didn’t know. But he could say
that permit sales generated $2 million in 2012 and so far in 2013 sales
revenues have reached $1.5 million.
Stevens went on to say that
there are seasonal variations in permit sales, recognizing family
vacations and best fishing months. The Park Service permit sales
offices in Buxton and Coquina Beach are the busiest of the three
offices, but they are keeping up with demand. In response to
Boyle’s question, he reviewed the process of applying for and
purchasing a permit. During the first year, the rangers coupled
enforcement of the permit regulations with education of drivers.
He added that beach drivers are policing compliance themselves,
reporting vehicles without permits to the rangers.
that law enforcement on the beaches has been beefed up with the hiring
of four new enforcement rangers using funds from permit sales.
Without those funds, the staff would be sharply impacted by federal
sequestration budget cuts.
Boyle asked about the impact of the
permit requirement on arrests for beach driving violations. In
2012, Stevens said, there was a 50 percent reduction in arrests for DUI
and a sharp decrease in emergency night call-outs of enforcement
Before the consent decree was issued in 2008, Boyle
said, before permit regulations, anyone with a vehicle could drive on
the beach, creating a constant law enforcement challenge. Now, he
said with apparent satisfaction, no one can drive without a permit or
at night. And the people who are permitted to drive are more
Stevens agreed, citing similar permit
restrictions on the national seashores on Cape Cod and Assateague
Island in Virginia. There have been no vehicle deaths since the
permit regulations went into effect.
After Paul Stevens was
excused, Judge Boyle addressed the court. SELC filed its lawsuit
against the National Park Service in 2007, he recalled, demanding that
an ORV management policy be enacted at the seashore. A consent
decree by Boyle to settle the suit was issued in 2008, and a Park
Service management plan and rule were effective in 2012. As part
of the consent decree settlement of the SELC suit, an injunction --
against any vehicle access to any beach in the seashore -- was held in
abeyance to ensure successful performance of the terms of the decree.
There seemed to be a carefully ominous undertone to that last
observation. He asked if there were other issues related to those
matters, and none were raised.
The judge then asked if the SELC
is involved in what he called “the other lawsuit.” There was some
rather confused conversation among Boyle, Julie Youngman, and Rudy
Renfer about who had filed the suit and whether that plaintiff had
legal standing. After digging through her papers, Youngman
advised Boyle that the Cape Hatteras Access Preservation Alliance had
sued the Department of the Interior and the National Park Service,
claiming improper procedures in developing the rule.
lawsuit was filed in early 2012 in the U.S. District Court in
Washington, D.C., with a motion for summary judgment. The
Washington court transferred the case to Eastern North Carolina.
In fact, Youngman pointed out, Judge Boyle is assigned as the presiding
judge. SELC, she said, is only an intervenor in that case.
Rudy Renfer disavowed any involvement by his office.
asked if there were any other issues to be considered. Rudy
Renfer said he had no issues and reminded the court that he and the
other lawyers were there at the judge’s request.
Boyle stated that he has great interest in the case of the Cape
Hatteras National Seashore and will continue to monitor it. He
asked that the data included in Julie Youngman’s charts and other new
information brought to the conference and promised to the court become
part of the public case record. That, he said, will be in the
interest of the park and of the people of the United States. The
court stood adjourned.
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